First Officer Publicly Resists War
From: http://www.truthout.org/docs_2006/060806J.shtml
Thursday 08 June 2006
Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order
to deploy to Iraq. Lieutenant Watada said at a press conference in Tacoma, Washington, "The war in Iraq is in fact
illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take
part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."
Citing "deception and manipulation … and willful misconduct by the highest levels of my chain of command," Lt. Watada
declared there is "no greater betrayal to the American people" than the Iraq war.
The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and
innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my
chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up
and do whatever it takes," even if that means facing court-martial and imprisonment.
Lt. Watada asked me to speak about the legality of the war at his press conference.
I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and
crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three
crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
The United States Is Committing a Crime Against the Peace in Iraq
The Nuremberg Tribunal called the waging of aggressive war "essentially an evil thing ... to initiate a war of
aggression ... is not only an international crime; it is the supreme international crime differing only from other war
crimes in that it contains within itself the accumulated evil of the whole."
A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq
violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that
prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the
Charter.
Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US, or any other country, for 12
years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing
sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."
Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused to give its stamp
of approval. Bush then cobbled together prior Council resolutions, none of which, individually or collectively,
authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter
empowers only the Council to enforce its resolutions.
Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot
delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot
authorize the President to execute an aggressive war.
The United States Is Committing War Crimes in Iraq
Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.
All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to
everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment,
torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are
memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly
revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners
inhumanely.
Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War
Crimes Act. Willful killing, torture or inhuman treatment, and willfully causing great suffering or great bodily harm
are grave breaches.
The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of
Geneva, and therefore, war crimes. The execution of unarmed civilians at Haditha and in other Iraqi cities are war
crimes.
Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they
knew or should have known their inferiors were committing war crimes and failed to stop or prevent them. However, it is
unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.
The United States Is Committing Crimes Against Humanity in Iraq
Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The
targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity.
The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four
Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its
refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a
"weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.
Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: "No political or
economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are
crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of
criminal conduct against others which we would not be willing to have invoked against us."
The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful
commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation
not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article
92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United
States …"
The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq.
Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage.
*************
Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive
vice president of the National Lawyers Guild, and the US representative to the executive committee of the American
Association of Jurists.